Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20240702 DOCKET: COA-23-CR-0445
Huscroft, Dawe and Wilson JJ.A.
BETWEEN
His Majesty the King Respondent
and
Olajuwon Ajibola Appellant
Counsel: Anita Nathan, for the appellant Sarah Shaikh and Nicholas Baldwin, for the respondent
Heard and released orally: June 28, 2024
On appeal from the conviction entered on June 1, 2022 by Justice John A. Payne of the Ontario Court of Justice.
Reasons for Decision
[1] The appellant was found guilty of possession of fentanyl for the purpose of trafficking and possession of the proceeds of crime under $5,000. The fentanyl was found in a backpack that was in the trunk of a car he was driving, and the trial judge found that the appellant was in constructive possession of the fentanyl.
[2] The appellant argues that the verdict was unreasonable. We do not agree.
[3] This was a circumstantial case. The trial judge recognized that in order to find the appellant guilty beyond a reasonable doubt, guilt had to be the only reasonable inference available on the evidence as a whole: R. v. Villaroman, 2016 SCC 33.
[4] The trial judge considered both the evidence and the absence of evidence. He recognized that being in operation of a motor vehicle alone did not establish possession. The trial judge inferred that the appellant was travelling given the hotel key card in his possession and the clothes in the backpack but made no finding as to the nature of the clothes. He considered and rejected the possibility that someone else left the fentanyl in the backpack in the trunk without the accused’s knowledge, because the fentanyl was valuable – it was worth between $2,300 and $4,600 – and inferred that no one would leave such a valuable item in the car without the appellant’s knowledge. The appellant chose not to testify, as was his right, and as a result there is no exculpatory explanation. In these circumstances, it was open to the trial judge to find that the appellant’s possession was the only reasonable inference available on the evidence.
[5] The appeal is dismissed.
“Grant Huscroft J.A.”
“J. Dawe J.A.”
“D.A. Wilson J.A.”